As we have previously noted, the EEOC continues to push the envelope on many fronts, including new theories/arguments in cases brought under Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), such as its recent attack on wellness plans, discussed here.
Most recently, in EEOC v. Autozone, Inc., No. 15-1753 (7th Cir. Jan. 4, 2016), the Seventh Circuit affirmed the denial of the EEOC’s request for a new trial in a case brought under the ADA where after a five day trial the jury returned a full verdict for the employer. The decision is an interesting read for corporate counsel focused on EEOC litigation and ADA compliance.
In 2009 an employee who worked for AutoZone as a Parts Sales Manager was permanently restricted her from lifting anything with her right arm that weighed over 15 pounds. Id. at 2. One month later AutoZone discharged the employee because it was unable to accommodate her permanent restriction. Id. The employee filed a charge with the EEOC, which, after issuing a probable cause determination, filed suit against AutoZone alleging that it failed to accommodate her lifting restriction and illegally terminated her employment. Id.
A five-day jury trial was held in November 2014. Id. The jury returned a special verdict finding that the EEOC failed to prove by a preponderance of the evidence that the employee was a “qualified individual with a disability or a record of disability at the time that her employment was terminated.” Id. The EEOC subsequently moved for a new trial. In support of its motion, the EEOC argued: (1) the verdict was against the manifest weight of the evidence; (2) the medical evidence established that [the employee] was disabled as a matter of law; and (3) the jury instructions confused the jury. Id. at 3-4. The district court denied the motion. Id. at 4. Thereafter, the EEOC appealed.
The Seventh Circuit’s Decision
The Seventh Circuit rejected all three grounds advanced by the EEOC in support of the request for a new trial. With respect to its argument that the jury’s award went against the manifest weight of evidence, the Seventh Circuit held that “based on the substantial evidence presented at trial, a rational jury could have concluded that heavy lifting was a fundamental duty of the PSM position, rather than merely a marginal function.” Id. at 7. Since the employee could not lift more than 15 pounds with her right arm, “there was sufficient evidence for a rational jury to find that she could not perform the essential functions of the PSM position. Thus, a rational jury could find that Zych was not a qualified individual with a disability.” Id. at 7-8.
The Seventh Circuit also rejected the EEOC’s request for a new trial based on the district court’s denial of its proposed team concept instruction. The proposed team concept instruction that the district court rejected stated:
In team working environments, where team members per-form tasks according to their capacities and abilities, job functions that are not required of all team members are not essential functions. Where there is no required manner in which employees are to divide the labor, the fact that one team member may not be able to do all the tasks assigned to the team does not mean that person is unable to per-form his or her essential functions.
Id. at 3.
The EEOC argued that this “team concept” jury instruction was permitted in prior cases, and, by denying it, the district court “provided the jury with an incomplete and misleading statement of the law.” Id. at 9. The Seventh Circuit disagreed. First, it held that, “the EEOC’s proposed team concept instruction was an attempt to have the jury draw an inference that heavy lifting was not an essential function of the PSM position.” Id. at 12. The Seventh Circuit found that, “the district court was not obligated to promulgate such an inference within the jury instructions. Rather, it was proper for the district court to instead allow the EEOC to make its team concept argument to the jury in its closing arguments.” Id. at 13.
Furthermore, the Seventh Circuit found that the district court’s denial of the proposed instruction did not prejudice the EEOC. Id. at 13. Although the district court denied the instruction, the judge nonetheless allowed the EEOC to argue it to the jury during closing arguments. Id. at 13. However, the EEOC chose not to do so. Accordingly, as “the EEOC decided not to present the team concept argument, despite the district court expressly stating that it could, the EEOC cannot now claim that it was prejudiced by the district court’s refusal to admit its proposed jury instruction.”
Implications For Employers
This decision highlights not only the continued push back against the EEOC’s new “theories” of liability in ADA cases, but also the importance of jury instructions at trial and preserving the record if the district court rejects proposed jury instructions. Here, the Seventh Circuit took pains to point out that the district court, while denying its proposed instruction, nonetheless allowed the EEOC to argue the points to the jury during its closing. By the Commission failing to do so, the Seventh Circuit was quick to point out that the EEOC seemed to have voluntarily abandoned its argument, thus belying any claim of prejudice.